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RobinEggs writes "A case before the U.S. Supreme Court Wednesday addressed the legality of medical patents. From the article: 'The case focuses on a patent that covers the concept of adjusting the dosage of a drug, thiopurine, based on the concentration of a particular chemical (called a metabolite) in the patient's blood. The patent does not cover the drug itself—that patent expired years ago—nor does it cover any specific machine or procedure for measuring the metabolite level. Rather, it covers the idea that particular levels of the chemical "indicate a need" to raise or lower the drug dosage. The patent holder, Prometheus Labs, offers a thiopurine testing product. It sued the Mayo Clinic when the latter announced it would offer its own, competing thiopurine test. But Prometheus claims much more than its specific testing process. It claims a physician administering thiopurine to a patient can infringe its patent merely by being aware of the scientific correlation disclosed in the patent—even if the doctor doesn't act on the patent's recommendations.'"

It will only stop when somebody attempts to apply the same strategy to the legal profession. Then, with any luck, one of two things will happen:

1. The lawyers, judges, and Congress will realize that the entire government will grind to a halt if that strategy is allowed, so they will reject the strategy, and finally come to realize why this is such a problem in other areas, and finally fix it.

2. It succeeds, and everything does grind to a halt until Congress passes a massive overhaul to change it all (making it just retroactive enough to negate all patent lawsuits against their own overhaul.)

or 3. The lawyers, judges, and Congress will realize that the entire government will grind to a halt if that strategy is allowed, so they will reject the strategy, completely failing to realize that this is also a problem in other areas.

Every retard patent is sapping efficiency from the system if enforced. So either patents become mostly unenforcable, or they are rabidly enforced and clogs the legal system entirely. Or they are rabidly enforced sucessfully and result in total collapse of society and everything else as ideas such as treating dehydration by drinking water and/or using photosynthetic non-domesticated organisms to generate O2 suddenly needs an annual license.

or 3. The lawyers, judges, and Congress will realize that the entire government will grind to a halt if that strategy is allowed, so they will reject the strategy, completely failing to realize that this is also a problem in other areas.

This is exactly what happened in banking... they had a patent troll attack, and the bansters' government pets just made that entire sector immune [1] from the problem.

So what you get is further distancing of sectors like banking and law from the rest of us... and increases likelyhood of a (more violent) revolution.

1. Patent a precise method used to record patent documents in a digital form on a computing device, a computing device with a touch screen, and a hand held computing device with a touch screen.
2. Write software that can be used to record patent documents in a digital form, a vi macro would suffice.
3. Sue patent trolls for patent infringement.
4. Profit.

Unfortunately, what would probably happen is the patent office will simply say 'no you can not patent legal tactics/issues/etc' and that is the end of it. Carve themselves an exemption and allow the problem to continue. Kinda like how the banking industry got that wonderful exemption to patent suits in the new overhaul, it ended up ONLY applying to banks, even though it was tech companies that had originally lobbied for it.

Sorry Mr. Patient. While I know exactly what's wrong with you, the Medi-Jackass Inc. will sue me into oblivion if I prescribe the proper treatment to you!No, I can't tell you either. They'd sue me into oblivion TWICE, then go after you too.

Un-fucking believable.

All I can hope is that medical establishments EVERYWHERE (including insurance companies) tell these people to fuck the hell off and stonewall them into bankruptcy while blacklisting every product and service they use to hasten the process.

All I can hope is that medical establishments EVERYWHERE (including insurance companies) tell these people to fuck the hell off and stonewall them into bankruptcy while blacklisting every product and service they use to hasten the process.

My hope is with you, buddy. Except I fear that whenever money is involved, ethics, humanitarianism and other socially awesome things go out the window.

Sorry Mr. Patient. While I know exactly what's wrong with you, the Medi-Jackass Inc. will sue me into oblivion if I prescribe the proper treatment to you!
No, I can't tell you either. They'd sue me into oblivion TWICE, then go after you too.

Un-fucking believable.

35 USC 287(c)(1): With respect to a medical practitioner's performance of a medical activity that constitutes an infringement under section 271(a) or (b) of this title, the provisions of sections 281, 283, 284, and 285 of this title shall not apply against the medical practitioner or against a related health care entity with respect to such medical activity.

There are no damages for infringement by a medical practitioner of a medical activity. No one's going to sue doctors. Stop the FUD.

Indeed, patents have some how strayed wildly from their intended purpose. For instance, Monsanto is suing farmers who's fields have been pollinated (yes, through wind drift, and birds, and bees) from other neighboring farmers who happen to use their seeds (GMO, patented). This is not what patents are for! Patents are to protect Monsanto against other manufacturers copying their genetic seed developments. Yet Monsanto has successfully crushed farmers whose fields have been pollinated (from wind drift) and who refused to purchase their seeds--all under patent law! Judges have no knowledge of this system, and people cannot defend themselves properly against big business. This is a mess.

My theory is that Monsanto launched this offensive to knock of balance those who would sue them because Monsanto's GMO crops pollinated and therefor contaminated their crop, be it organic or not. These GMO crops are not popular in other parts of the world, banned in certain parts of Europe--and refused by many others, so Monsanto is on the ropes and swinging wildly for fear that America will ban them as well. The seed business is a nasty one indeed.

They also don't allow you to take the seeds from the plants that you grow from their seeds. You have to buy new seed every year. I suspect that might be more of the reason. They really want to cover all angles so that people that are customers are forced to keep coming back every year.

Which is, frankly, stupid. ALL living things are Genetically Modified Organisms, it's just that the mechanism of modification is usually either more random (natural evolution), or takes longer (breeding and hybridization, AKA ranching and farming). Manipulating genes directly is both more efficient and more effective. If it wasn't, farmers wouldn't buy the seed.

Now it's true that we don't really know the extent of the role that the genetics of our food supply plays in our health, but that's just as true

There is a story (mentioned in the documentary Food Inc IIRC) about someone who owned a machine for cleaning soybean seeds so they could be re-planted. Monsanto went after him and basically said "unless you can prove that not a single Monsanto GM seed went through your machine, we will sue you"

You are probably refering to Monsanto v. Schmeiser case [wikipedia.org]. Correct me if I'm wrong but there were no other cases like that.

There is no-one sued just for having his crops pollinated with Monsanto's Roundup wheat. The farmer was sued because he knowingly planted Monsanto's seeds. On the other hand the judge also ruled against any financial compensation to Monsanto as the farmer did not gain anything by his actions.

It still sucks that the farmer ended up paying a fortune for legal aid while not doing anything wr

*rolls eyes* yet it's been ruled that the patent follows the gene.. meaning that in the event OF a case where a plant is naturally pollinated from pollen originating from a Monsanto 'product' the resulting plant is considered a Monsanto product and a 'unlicensed' one at that.

You are probably refering to Monsanto v. Schmeiser case. Correct me if I'm wrong but there were no other cases like that.

From Wikipedia [wikipedia.org] "Since the mid-1990s, it has sued 145 individual US farmers for patent infringement in connection with its genetically engineered seed."

Of course, it's not easy to determine whether the farmers planted the seeds intentionally, or if it was more survival of the fittest seeds, and over several seasons, the Monsanto seeds would be a large portion of the crop.

The main point is that it shouldn't be possible to patent a gene sequence at all, since it's unlikely that DNA patents "promote the Progres

Complete BULLSHIT. The cases where Monsanto sued farmers all involve instances where farmers intentionally planted seed which they knew contained unlicensed genetic material. There has never been a case including the famous Monsanto vs Schmeiser where accidental pollination was the sole event.

It should be Monsanto that gets raked over the coals by the courts rather than the other way around. They have created a dangerous product that tends to ruin the property of others. If not for the blatant "anti-individual" attitudes prevalent today, they would be eviscerated figuratively and literally.

It's high time that preservation of seeds from one's crop became a constitutionally protected right. All of those hicks in Red States need to stop fixating

The farmer had a field next to a GMO field. The plants in the farmers own field got contaminated. Yes the farmer "knew about it" but it wasn't his fault and there was nothing he could do to stop it. There certainly weren't Monsanto reps running around offering to filter his seeds for free to identify which ones were GMO contaminated and which ones weren't.

Now when you say "intentionally planted"; what you mean is that the farmer took his only seeds; the ones which were contaminated; and then planted them. So in the end, if the farmer wanted to use his own seeds from his own field he had no choice apart from "intentionally" planting seeds which had been knowingly contaminated by Monsatnto.

Blaming the farmer is deeply disingenuous here. If Monsanto wants control of it's own genes then it should be responsible for ensuring that they don't contaminate other people's crops.

"But Prometheus claims much more than its specific testing process. It claims a physician administering thiopurine to a patient can infringe its patent merely by being aware of the scientific correlation disclosed in the patent—even if the doctor doesn't act on the patent's recommendations."

Simple: for $20000, Medi-Jackass will offer to settle our of court, with both sides knowing full well that litigation will cost the doctor $100,000+. The doctor's insurance company will then inform him that if he screws up like that again, they will drop him, making him effectively unable to practice.

Yeah, except that this is in the Supreme Court now because they are suing doctors. Well, they're suing the clinic where those doctors offer treatment, but the law you quoted covers "related health care entities" which you would hope meant the clinic they work at! Apparently no court so far has felt that it does. And "we won't sue you Dr. Doctor, but we'll get a few million out of the hospital you work at and I don't think they'll be pleased with you" seems to more or less have the same net effect. Besid

This is about if a generic version of the drug can be sold now that the patent on the drug has expired. There are still use patents on it though. Though some uses are not patented. The downside is not that the patient would not receive medicine. But that the patient would receive expensive medicine instead of the generic.

Exactly. A similar example of this is the drug Propecia - the hair loss drug. Propecia is a 1mg dosage of Finasteride that goes for over $2 a pill and is patented so there's no generic option. The thing is, Finasteride isn't new, it has been around since the 60's in a 4mg dosage to treat prostate enlargement and hormonal issues, it isn't under patent anymore and costs about $.02 a pill. Merck came along a few years ago and claimed to invent the same damn drug for a different purpose and got an 8 year patent on it allowing them to jack the price for no good reason.

If the drug already exists, then no, I don't think it's "worth something". Do you think Bayer would have been justified in seeking a new patent on ASA if it's dosage is heavily reduced and used to reduce the risk of heart attacks and strokes?

Drugs don't just magically get approved for new uses. Companies spend millions in trials and legal fees to get it approved for the new use. They then need to market it so that docs will actually prescribe it for that use, deal with insurance companies to make sure they will reimburse for the drug when used for that reason etc. How many 0.02c pills do you need to sell to get your money back? Should companies just not pay for the studies since if they are stuck selling the drug for pennies they can't recoup t

The major cost of testing a new compound is to prove the drug is safe, i.e doesn't kill the patient, or has any other nasty side effects. Whether it actually does any good is almost left as an afterthought. Since (almost) all of that should be well established by the time someone comes up with an idea for a second use, then no, they should't be able to get a God damned patent for using the same drug for something new. They can got a patent for the drug, that's it.

It's bad enough that my family physician has to employ a couple of people whose sole job is to deal with the insurance companies all day long. Now it seems, if this idea is approved by the Supreme Court, they'll need to have a patent attorney on retainer to make sure they don't run afoul of some pharmaceutical company who found that a drug's effectiveness can actually be measured.

I thought it was supposed to be a bad idea to have the government getting between the doctor and the patient. If this isn't government getting between me and my doctor, I sure as hell don't know what is.

I represent generic drug companies. I can tell you that brand operations do not go after, and would not go after, individual doctors. It would be impractical. Interestingly, the Caraco v. Novo Nordisk case heard on Monday by the Supreme Court was exactly about a situation where Novo Nordisk was going after Caraco not because of anything Caraco did, but because of what doctors and patients would do. So much for that straw man.
The Supreme Court is dealing with a line-drawing problem in Mayo v Prometheus. Yo

the Supreme Court is not a trial court, they only hear appeals after a trial has taken place and appeals to lower level courts have been exhausted. they don't hear any evidence.

the parties submit their briefs, other parties submit their briefs depending on who's side they are on. the record of the case goes to the justices. each party gets something like 15 minutes to summarize their case during which they are constantly interrupted by the justices with their questions.

almost a year later after looking at the records the justices give a decision and most times the case is sent to a lower court for more litigation

don't believe idiotic tech magazine stories written by people who don't know how it works

This is as basic as it gets. Can companies patent the use of facts? Let's see if they can get this right. If they do, at least we know there's an upper limit to their ignorance.
If they can't , then it's the end of innovation in the US and the beginning of a stampede of smart, motivated people who want to do Good Things out of the US and into the EU or elsewhere.
It's just that simple. Either we're free to innovate in this country, or we leave our country in favor of a land that offers more freedom and opportunity.
Just like our forefathers did.

RE: we leave our country in favor of a land that offers more freedom and opportunity. Just like our forefathers did.

So.. Where do you plan to go?

Anywhere that is comparable (Canada, Australia, etc...) is being bullied/manipulated/bought by US Gubbermint/Corps.

In a race to the bottom, Canada and Australia are catching-up with the US' retarded laws. I give them 5 - 10 years tops before we are as locked-down and void of "motivated people who want to do Good Things" as the US.

Either we're free to innovate in this country, or we leave our country in favor of a land that offers more freedom and opportunity.

We may be free to leave this country, but it doesn't follow that we are free to move to another. There are plenty of smart, motivated people who are not welcome in the EU, for instance if they are too old.

Based on other cases which have already received their decisions from SCOTUS over the past year, this isn't their intelligence test. They've already failed at protecting citizens, consumer protections, and very prominently shown they favor big corp/big gov over all else.

The infamous "You can waive your right to class actions and the corporation gets to choose the arbitrator if you sue" case was my "as basic as it gets" test for them. And boy, did they fuck that one up.

Instead of an insult, you could add to the discussion by pointing out where he was wrong and explaining what is correct. Or, if you don't know, you could just not speak, which will still give a higher net contribution to the conversation.

I'm sorry what aspect of law would you be referring to? The law the Supreme Court makes? By that measure, they're always right, irrespective of how they decide an issue. In logic, we call that a "tautology"

The aspect of the law I am referring to is its "justness" and "advisability". The extension of patent "rights" into methods and software is not only inadvisable, but also unjust .

In fact, another source of some authority on US law, the U.S. Constitution states that patents will be granted for the purpose of ADVANCING the useful arts and sciences. Failing that, no patent is deserving. Advancing the useful arts and sciences is not synonymous with advancing the material welfare of corporations or individuals, despite what Ayn Rand claims.

You talk as though citizens whose rights and livelihoods are going to be directly affected by their own judiciary's decisions ought to somehow stand meekly aside and permit the "experts" in law decide what the law shall be.

I have two words for you: Dred Scott.

Actually, your "tut tut" attitude might make some sense if the law in question was only concerned with measurable facts , like say theoretical physics., or the effect of excess carbon on the planet's temperature.

But it makes exactly zero sense when the subject matter is what a people shall declare a normative law- which will rule them all- shall be.

Maybe you're an IP lawyer. Maybe you're a lobbyist. Maybe your a bureaucrat. Maybe you're a patent holder. Really, those are the only categories of people I know of who would take the attitude that democracy should be a spectator sport and the people should not involve themselves, much less get worked up about, the morality or advisability of their own laws.

The extension of patent "rights" into methods and software is not only inadvisable, but also unjust.

What extension are you referring to? 35 USC 101 states that patent eligible subject matter includes processes. 35 USC 100 says that "process" includes "method". So what's being extended when we say that methods are patentable?

In fact, another source of some authority on US law, the U.S. Constitution states that patents will be granted for the purpose of ADVANCING the useful arts and sciences. Failing that, no patent is deserving.

Respectfully, you're misreading the Constitution. It doesn't say that patents will be awarded to those who advance innovation. It says that a patent law system shall be created to encourage innovation... each individual patent doesn't have to encourage innovation, rather the system as

The first thing that any party to this discussion must acknowledge before anything else in order to demonstrate that they aren't just out to destroy everyone else for their own selfish interest is the simple fact that no one has an inalienable right to a patent or copyright.

I'm a patent holder. Twelve of them to be precise. In a field other than software. And you can bet that every time I read one of these patent articles on slashdot I get worked up - at the utter ignorance of most of the commentators regarding the US Patent system.

I have a question for you - you have expressed a opposition towards the current system in the US. And you have expressed disdain towards those who think democracy should be a spectator sport.

Advancing the useful arts and sciences is not synonymous with advancing the material welfare of corporations or individuals, despite what Ayn Rand claims.

Did you know that Ayn Rand disapproves of corporations as a concept? Somehow, I suspect not.

If you've ever read Atlas Shrugged, one of the things you might remember is that many of the villains of the story were...corporations. The kind of corporations that uses those government-granted immunities to their advantage, instead of coming up with better wa

Yes. Fleeing for greener pastures is also fundamentally cowardly. The US constitutes a democratic republic. People: presidents and representatives win and lose elections. USE the fucking elective power GUARANTEED to you, goddammit. I know it's not easy; I know the two parties have come to constitute a de facto oligarchy. But the bottom line is that no one can (yet) stop you writing in anyone's name on an election ballot. The grass roots must organize.

...no one can (yet) stop you writing in anyone's name on an election ballot...

Having worked in Texas elections, I can tell you this isn't really true, at least in Texas. While you can write any name you want, only names on the list of write-in candidates will be counted. So if you write in Mickey Mouse, and he's not on the list, that vote won't be counted.

No, this is about if a generic version of the drug can be sold as long as the label doesn't instruct the physician about the patented use. The holder of the patent wants to ban generics even though the patent on the drug itself has expired.

I know nothing about the US patent system - but my first thought on reading this was as follows.Proper administration of the drug is supposed to violate the patent.The drug in question is out of patent... (for years)Does this mean that there was an extended prior where the drug was not able to be administered correctly to start with, or does their argument cause the 'method' patent to be invalid on grounds of prior art which must have existed in order for the drug to be administrated properly in the first place.

I think w hat happened is that the drug was invented, it worked, and it was sold. Then later, someone figured out that it works better if the dose is adjusted depending on this metabolite level.

That second discovery no doubt required work and money to test so if you're going to have a patent system that idea should be patentable. I agree the company has aver stepped the bounds by arguing that anybody who administers the drug even knowing about the metabolite is infringing the patent though.

Supreme Court, like all other government institutions has failed the country by abandoning the Constitution and aligning with special privileges.

By the way, do not forget your rights if you become a jury - NULLIFICATION.

You are not there only to find guilt of the defendant, you are there to question the morality of the law itself. Do not be bullied by the judges, who tell you that they are the law and you must only judge based on the law itself. Always remember - any proceeding where the individual is sta

Apparently you don't understand how summary judgment works. Summary judgment will not be granted if there is a genuine dispute as to a material fact (i.e. a fact that could affect the outcome of the case). The purpose of summary judgment is to resolve issues of law that would not be given to the jury, or to save the time and effort of a trial if the facts are undisputed. Whether the claims are patent eligible under 101 is an issue of law that would not be submitted to the jury in any case.

I read the transcript [supremecourt.gov] of the arguments, and it wasn't really clear to me what way they were leaning. Sotomayor seemed mostly in favor of the patentee, while Breyer especially was critical of the patentee. But these are oral arguments, and justices can take devil's advocate positions during these in order to tease out certain details of the case. Figuring out how the court will swing based on the oral arguments is like reading tea leaves, especially when it comes to patent law.

As for the correctness of the headline: This case is in the Supreme Court because an early summary judgment motion in the district court was granted, ruling that the patent is invalid. The case was appealed to the Federal Circuit, which reversed the ruling, and then Mayo appealed to the Supreme Court.

This case only focuses on the question of patentable subject matter under 35 USC 101, i.e., what kinds of claims should be patentable. In particular, the question here is whether the claims are directed to an application of a law of nature (the metabolism of a certain drug administered to a patient) or to the law of nature itself. Laws of nature are not patentable in and of themselves, but applications of a law of nature can be, as long as the entire law of nature is not "pre-empted" by the claim. In other words, matter-energy equivalence, E = mc^2, is a law of nature. Particular applications of that principle can be patentable, but if the claims are written such that every conceivable application of the principle is covered by the patent, then the principle is pre-empted by the claim (i.e., they might as well have claimed that entire law of nature, because the claims effectively cover it entirely).

Prometheus, and the federal government, both argue that the arguments that Mayo is making are better addressed when considering the claims against the prior art (i.e., under 35 USC 102 and 103). (This is in part because Mayo is doing a hamfisted job of arguing their case, probably because they don't want to sabotage some of their own medical treatment patents.) The issue is that prior art considerations require a time-consuming process called a Markman hearing, where the court decides how to construe the various terms recited in the claims, and usually thereafter, a jury decides whether the prior art covers the claims, which makes the process extremely uncertain. It's Mayo's hope that patents like this can be killed early on in the process by a judge, rather than putting all their money on double-zero and giving it a spin with a jury.

TLDR version: Nobody really knows what SCOTUS was thinking during oral arguments. This isn't the end of the road for this case, even if Mayo loses, because prior art still has to be considered.

Thank you so much for posting this. I find the Supreme Court transcripts fascinating and agree with critics who argue the Supreme Court cases should be broadcast live on C-SPAN since they are infinitely more fun than watching an empty House do nothing all day.

On the topic of the Supreme Court debating scientific issues, it's interesting that the National Academies Press publishes a manual [nap.edu] intended to educate judges on how to evaluate scientific evidence. The anecdotal evidence implies that not many of them

http://www.scotusblog.com/2011/12/argument-recap-for-want-of-a-good-hypothetical/ [scotusblog.com]...Over and over, the Court puzzled over how one could start with a law of nature, which is not eligible for a patent, and then find a way to expand on it that is creative enough to earn a patent. It is an inquiry, one of the Justices said early on, that might lend itself to the conjuring of “millions of hypotheticals.” But the hypotheticals that were forthcoming were not very helpful.

I got thirsty. My doctor asked me a few questions and told me to drink water from a sterilized vessel sold by this company, Corning I believe. It worked. Unbeknownst to us there was this patent for "method of detecting and correcting dihydrogen monoxide deficiency". We're in big trouble now.

It really is that ridiculous, unless Slashdot is just being sensationalistic which I don't think they are. Also, another way DHM can get you in big trouble. That stuff's deadly. Stay away from it.

Just looking at the amount of people defending this and going through semantics here on slashdot TO defend it proves your point. that is up to the point where they have to go to the doctor, and the doctor kicks them out because he can't pay the royalty's to use the diagnosing method to help treat what ever they have. wither it be a common cold or a first sign of a fatal cancer.

You are not safe of it outside. There are plenty of american laws regarding patents and copyrighted content that are push to other countries like there is no tomorrow, and the other countries (or their legislators, those "incorruptible" entities that make laws) usually put forward those laws. See what happened around the Sinde law in Spain, even after was public why they were approving it.